When Bad Things Happen to Good Scholars (Koh and the ICC Edition)

by Kevin Jon Heller

I’ve long thought that any scholar who wants to maintain his or her credibility should stay far away from the US government, no matter which party is in power. Harold Koh is a case in point. Others have highlighted his problematic testimony about targeted killing, which continued to maintain the Bush administration’s fictions — ably dissected by my friend Marko Milanovic — that we are in some kind of amorphous global armed conflict with al-Qaeda and that the US’s right of self-defense under the UN Charter means that (alleged) members of al-Qaeda have no protection against targeted killing under international human-rights law. I want to focus on Koh’s recent and even more problematic testimony about the crime of aggression, which will be the focus of the ICC’s review conference this June in Uganda.

As the International Law Commission recognized when it looked at this issue in 1996, a state whose leaders are accused of aggression must consent to jurisdiction to be tried in another state’s courts. We believe that it follows that the International Criminal Court’s jurisdiction over such cases, when it derives from national jurisdiction, must similarly require the consent of the State that is accused of aggression.

The 1996 Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the ILC in its Forty-Eighth Session, says nothing of the sort. Article 8 does not permit states to prosecute other states’ acts of aggression; it specifically vests jurisdiction over the crime of aggression in an international criminal court. And Article 8 does not require an international criminal court to obtain the consent of the state whose national is accused of aggression.

With respect to the Chair’s second question, our views are well-known: that investigation or prosecution of the crime of aggression should not take place absent a determination by the UN Security Council that aggression has occurred. The UN Charter confers on the Security Council the responsibility for determining when threats to peace and security, including aggression, have taken place. We are concerned by the confusion that might arise if more than one institution were legally empowered to make such a determination in the same case, especially since these bodies, under the current proposal, would be applying different definitions of aggression.

This statement is disingenuous. The Charter does not confer on the Security Council exclusive jurisdiction to determine whether an act of aggression has taken place; both the General Assembly (such as its condemnation of China for acts of aggression toward Korea) and the ICJ (the US’s support for the Contras in Nicaragua) have made that determination, as well. That is why different options for the crime of aggression being considered by the Special Working Group would permit either the General Assembly or the ICJ to trigger the ICC’s jurisdiction if the Security Council fails to act.

The US position is also, of course, a political non-starter. There are only five countries in the world who would be happy conditioning the ICC’s jurisdiction on the Security Council determining that an act of aggression has taken place — the five members of the Security Council with a permanent veto. The ICC would be better off not having jurisdiction over aggression than allowing the P-5 to determine which acts of aggression it can (and cannot) prosecute. Which is, of course, exactly why the US continues to maintain its position — it wants to ensure that the Assembly of States Parties never adopts a definition of the crime.

Mr. Chairman, this decision would bring about an organic change in the Court’s work. Because this is such a momentous decision for this institution, we should leave no stone unturned in search of genuine consensus.

This just makes me chuckle. By “genuine consensus,” Koh means one thing and one thing only — a consensus that the ICC should uncritically adopt every US suggestion for how it should operate. A consensus that ensures the ICC will never prosecute an American or anyone else from a member of P-5. That position was unacceptable when the Republicans were in power, and it is no less unacceptable now that the Democrats are in power.

I am quite sure that Koh knows his arguments are both factually incorrect and politically unacceptable. Unfortunately, now that he has joined the Obama administration, he has no choice but to parrot the US line. Exhibit A as to why serious scholars should not join the government — regardless of who is president.

14 Responses

Permit a few serious big-picture questions from a right-leaning perspective.

Administrations of both major political parties now have decided that it is in the interest of the United States either to have a veto over determinations that the crime of “aggression” has occurred or else to prevent entirely the creation of any legal mechanism for its prosecution. That Koh cannot state this outright and so falls back upon calls for “genuine consensus” has, I think, more to do with the protocols of diplo-pleasantry than any earnest pursuit of intentional misdirection. It is, in any event, far less cynical than the practice (more common among nations other than the US) of signing up to such agreements and treaties as a show of virtue on the international stage – while having no intention of abiding by them when push comes to shove.

You reject the judgment of two administrations on this question. Do you do so because you believe that they have assessed the national interest incorrectly? – or do you do so because you believe a broader referral power serves a good greater than the interests of the United States?

I realize here that you are likely to respond that the ultimate interests of the US are better served by relinquishing this bit of power – though I would like you to explain why.

In any case, what I really want to get at is this. No one expects that this code would constrain Russia, for example, from following what she perceived to be her interests in her near abroad. No one expects that a Georgian prosecution against Russia would go forward – or, if it did, that it would be successful. In fact, we expect brutal military interventions from Russia, just as we expect human rights violations from China and law of war violations from Iran in its proxy-militia Hezbollah. Those nations, because of their power and will, are simply regarded as outside the scope of the virtue regime of international law – whether they’ve signed their names to it or no.

The IL virtue regime, in practical effect, primarily constrains weak nations and nations such as the US that are subject (at least somewhat) to legal and moral suasion.

Now, we live in a world where one must chose between possibilities that are real. The constraint of US power by the legal fetters of certain idealistic IL provisions will not, it seems to me, make the world a better place. (I term idealistic those provisions of IL which one simply expects certain signatories to ignore in practice – without significant consequence.) Nature abhors a vacuum, and other powers will act in the space vacated by the United States. Moreover, where strength chooses not to be constrained by law or foreign opinion, it can be constrained only by opposing strength.

Therefore, precisely because powerful bad actors get an implicit exemption from idealistic IL provisions, the net effect of these provisions is to give more relative power to those whom no one expects to act virtuously.

So at last I come to my question. You reject the conclusion by two US administrations that it is in the interest of the US to have a veto – or at least you reject the proposition that the US should have a veto – over findings of aggression to be referred to the ICC. Absent a US veto, any military intervention by the US will be that much more difficult. The powerful bad actors, however, are unlikely to feel any such constraint.

Where, then, in its practical alteration of the balance of powers in the world as it exists, is the good you see in your preferred outcome?

3.27.2010
at 2:12 am EST Nathan Wagner

Do you really want to live in a world where no serious scholars worked for the US government? Frankly, I find that idea somewhat frightening. And perhaps there is more to life than the legacy of books, law review articles and citations that most serious scholars leave behind. If you are correct that Koh is being forced to “parrot the US line” (many attorneys would describe that as representing the interests of their client), maybe he has made the decision that he can do more good within the sausage factory than he can do outside of it – or if not more good, perhaps a different kind of good. Either way, I think it’s very unhelpful to discourage the genuine interest that many academics have in public service.

3.27.2010
at 9:56 am EST Carlton

A serious scholar should stay in the vacuum of theory-it’s always safer.

We wouldn’t want the true scholars bubble of theory burst by the ugliness of reality-that would be <i>devastating</i>.

3.27.2010
at 8:25 pm EST evangeline

I think Nathan’s comments are spot on. To criticize Koh, in the way the post does, is to ignore how states make decisions. International law plays a part in state decision-making (how big or small is debatable), but it does not exhaust the factors states take into account. And nor, it can be argued, should it. Sure Koh may be stating various things in a disingenuous way, but that is unremarkable and to be expected. Highlighting this is fine, but at the same time, a rather banal undertaking (because it is so obvious).

To criticize the actions of one government, on the basis that they don’t fulfil international legal standards (standards which, in some cases are not at all clear, in any event) presupposes that the world would be a better place if the government in question did abide by those legal standards. As Nathan points out, this is a questionable presumption in the case of the US, given its status, and at the very least requires justification.

Moreover, it presupposes that the law itself (if clear and concrete) is impartial and fair: but this too is a position that requires justification. Insofar as international law has a bias – which I for one believe it does (see eg Anghie) – then maybe more rather than less law-breaking is desirable.

It is, in sum, too simplisitic, in my opinion, to simply use the law as a yarstick to judge state behaviour. It is too one-dimensional an analysis.

3.27.2010
at 11:36 pm EST david

I would have tried to pull that right-leaning perspective to a bit left, if that had only meant a conservative analysis of international law. Rather, I simply sense contempt to such law, based on a “conformist realpolitik” approach to international relations.
However, I do not agree with the proposition that “serious scholars should not join the government”. Instead, maybe they should just be aware of that they will lose their credibility in the academia in case they decide to side with any government. It may also be the case that we simply need to treat them as attorneys, “representing the interests of their clients”, instead as scholars expressing their views “objectively”(whatever that means).
On the other hand, it may also prove to be useful in some other parts of the world, in developing countries for instance, that governments have the advice of distinguished scholars in the assessment of the compatibility of their acts in the international arena. This may offer some prospects to prevent incidents such as those happened in Kosovo, Middle East, Africa… In order to be consistent however, I should note that such a “cooperation” of international law scholars and governments for the sake of a harmonious international community, also need to be the case in the elder brothers.
As some colleagues and commentators have pointed out, this may well be a “naive approach” to the contemporary international relations, however, one should admit that an egalitarian approach is also a ethical one. Moreover, it also its finds basis in the UN Charter – something that has been agreed upon in San Francisco and fiercely advocated in that part of the world- in the form of sovereign equality of states. Something that that “veto power” derives its legal basis.
In any case, I find it very difficult to blame somebody as a “bad actor” and imitate the very same act in disregard of the “virtue regime” and yet consider ourselves as “good actors”. Let me be more clear: There is no justification for your own actions, if you employ the same methods as what you morally stand against. This approach as offered in various comments to this contribution represents a tendency which is similar to the one advocated for systematic torture or other mass atrocities by governments on the basis of the presumption that “it is practical to disregard your own rules and principles and repress the bad guy by cruel and violent means”.
Notwithstanding that practicability is only a presumption, advocating such a “realpolitik” reminds us the justifications for the “Endlösung” and wars of aggression initiated by the German Reich in 1939 or countless Soviet policies both in Russia and abroad. I can only hope that no one here is opting for such a “law of the jungle”, but –by discrediting the international law for the sake of s states/governments interests- this is what you stand for here at the end of the day…

3.28.2010
at 2:29 pm EST Kerem Gulay

Kerem, I’m not necessarily advocating that states adopt a realpolitik position and I’m not justifying their conduct; I’m trying to emphasize that an analysis that ignores how states in fact tend to act (and particularly powerful states) is somewhat one-dimensional. I’m using realism as an analytical tool, and questioning the utility of using the law as a basis for criticism for two reasons: first, because the law has its own biases because it is created from political bargaining, and in any event, is hardly certain; and second, because states are not always trying to follow the law. They purposely deviate from legal standards, at times, and so criticizing them for not adhering to the law loses its sting.

3.28.2010
at 4:39 pm EST david

“[T]he justifications for the “Endlösung” and wars of aggression initiated by the German Reich in 1939 or countless Soviet policies both in Russia and abroad […] –by discrediting the international law for the sake of states/governments interests- this is what you stand for here at the end of the day.”

Reducto ad Hitlerum!

Let’s be serious. No one here is arguing that the United States is inherently a virtuous actor, that the US can do no wrong in pursuit of its interests as it perceives them. But neither, however, is international law inherently virtuous in its being or its effects. David mentioned IL’s biases and derivation from political bargaining. But even were we in possession of an international law of perfect and unquestionable virtue, it would still be in order to consider its real-world effects.

Are there or are there not many nations that sign IL provisions merely symbolically, with no real intention of complying against their interests?

Is it or is it not the case that the US is, generally speaking, more subject to legal and moral suasion than are powerful, willful, less democratic nations?

Is it or is it not the case that if all the world ratified the Rome statute, and if “aggression” could be referred to the ICC by the General Assembly, that the practical result would be a greater constraint on US action than on the actions of China, or Russia, or Iran?

Surely it is does not partake of Nazism to consider whether, if the US were fettered by this IL provision, and powerful, willful, less democratic nations were not (in practice) so fettered, the world would in fact be a better place?

3.28.2010
at 6:42 pm EST Nathan Wagner

Of course, under the Koh view there is a veto by US, France, Britain, Russia, and China – so the bad actors have the veto under the Koh regime. Given the illegal war in Iraq I do not believe that such a veto by the US or any other of these five permanent members is wise for the reasons of adding political pressure to the ICC process.
Best,
Ben

3.28.2010
at 10:21 pm EST Benjamin Davis

Nathan,

Our politics are obviously very different. I would not pretend for a second that it is in the interest of the US to give up a veto over aggression referrals. But I would argue that the absence of a veto would be in the interest of the rest of the world, given the US’s willingness to use armed force against anyone it deems its enemy. You distinguish between the US and the “powerful bad actors,” but I find it difficult to see a difference between the two, at least since the Second World War. Chile, Vietnam, Panama, Grenada, Iraq, Nicaragua… It’s a long and ever growing list.

In terms of aggression generally, I actually think it is tremendously important for the ICC to have jurisdiction over the crime of aggression. Many of my colleagues have effectively challenged the idea that international criminal law is capable of deterring genocide, crimes against humanity, and even war crimes. But aggression is the coldly calculated act of political and military leaders, so I can’t help but believe that the threat of international prosecution could help tip the scales against a leader’s decision to commit aggression. Would Russia not have used armed force against Russia if the ICC had jurisdiction over aggression, given that Georgia is a member of the Court? I don’t know — but the threat of an arrest warrant, with the international stigma it entails, would certainly not have been irrelevant to Russia’s planning.

Thanks Kevin. I’m less sanguine about the deterent effect on nations such as Russia than you are, and I think that such nations would sway GA votes using threat-levers that the US is unlikely to employ (or at least employ credibly). But I appreciate your reply.

3.29.2010
at 9:16 am EST Nathan Wagner

Nathan,

I share your skepticism of the GA — not only because it is no less political (though differently political) than the SC, but because I don’t feel comfortable with any political organization making what is, in the context of a criminal prosecution, a legal decision. Personally, I would be much more comfortable with the ICJ making the determination in an advisory opinion.

The United States suspended our signature on the Rome Statute back in 2002, and have no real intention of ratifying the treaty. Why are we still showing up at ASP meetings?

3.29.2010
at 2:52 pm EST M. Gross

Thanks again Kevin. Forgive me a bit of Matthew Arnold:

BEFORE Man parted for this earthly strand,
While yet upon the verge of heaven he stood,
God put a heap of letters in his hand,
And bade him make with them what word he could.
And Man has turn’d them many times: made Greece,
Rome, England, France:—yes, nor in vain essay’d
Way after way, changes that never cease.
The letters have combin’d: something was made.
But ah, an inextinguishable sense
Haunts him that he has not made what he should.
That he has still, though old, to recommence,
Since he has not yet found the word God would.
And Empire after Empire, at their height
Of sway, have felt this boding sense come on.
Have felt their huge frames not constructed right,
And droop’d, and slowly died upon their throne.
One day, thou say’st, there will at last appear
The word, the order, which God meant should be.—
Ah, we shall know that well when it comes near:
The band will quit Man’s heart:—he will breathe free.

3.29.2010
at 3:06 pm EST Nathan Wagner

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